The opinion of the court was delivered by: LAWRENCE KAHN, District Judge
MEMORANDUM DECISION and ORDER
Charles Pasciuti ("Pasciuti" or "Petitioner") is serving a 180 month
sentence as an inmate at the Federal Correctional Institution at Ray
Brook, New York for his role in a conspiracy to distribute a controlled
substance. Petitioner has been incarcerated since October 3, 1991, and
his 15 year sentence would expire on October 1, 2006. Applying credit for
good conduct time ("GCT") to Petitioner's sentence, the Bureau of Prisons
("BOP") has set his release date as October 26, 2004.
Pasciuti alleges that the BOP has incorrectly calculated the amount of
GCT to which he is entitled under 18 U.S.C. § 3624(b). Pursuant to
28 U.S.C. § 2241, and after exhausting his administrative remedies,
Pasciuti filed the instant habeas petition, asking the Court to alter
BOP's GCT calculation and order his release date to be set at July 11,
2004. In addition to his filing a habeas petition, Petitioner has also
filed a motion for a preliminary injunction, which requested similar relief, namely, his release from Ray Brook on July 11,
BOP's calculation of GCT is based upon the Congressional mandate in
18 U.S.C. § 3624(b) which reads*fn2
(b) Credit toward service of sentence for
(1) . . . [A] prisoner who is serving a term of
imprisonment of more than 1 year . . . shall
receive credit toward the service of his sentence,
beyond the time served, of up to 54 days at the
end of each year of his term of imprisonment,
beginning at the end of the first year of the
term, unless [BOP] determines that, during that
year, he has satisfactorily complied with . . .
institutional regulations. . . . If the Bureau
determines that, during that year, the prisoner
has not satisfactorily complied with such
institutional regulations, he shall receive no
such credit toward service of his sentence or
shall receive such lesser credit as [BOP]
determines to be appropriate. [BOP]'s
determination shall be made within fifteen days
after the end of each year of the sentence. Such
credit toward service of sentence vests at the
time it is received. Credit that has vested may
not later be withdrawn, and credit that has not
been earned may not later be granted. Credit for
the last year or portion of a year of the term of
imprisonment shall be prorated and credited within
the last six weeks of the sentence.
The parties construe this statute differently, which forms the basis of
the instant petition. Petitioner contends that by using the phrase "term
of imprisonment", a legal term of art, in § 3624(b), Congress
intended to allot 54 days of GCT for each year of an inmate's
sentence, not merely the time he has served.
Therefore, Petitioner asserts that his total GCT is calculated by
multiplying his total sentence of 15 years by 54, the number of days GCT
awarded under the statute for each "year of the prisoner's term of imprisonment," which
results in 810 days of GCT and his release on July 11, 2004.
BOP calculates Petitioner's GCT differently. At the end of each year of
imprisonment, for his good conduct during that year of incarceration, BOP
has awarded Petitioner 54 days of GCT. Therefore, as of October 1, 2004
he will have vested 648 days CGT 54 days for each of 12 years he
has served.*fn3 After applying the credit of 648 GCT days to his 15 year
sentence, on October 1, 2004, Petitioner will have less than one year
remaining on his sentence. Petitioner will then be awarded GCT of 3 days,
a prorated amount of GCT for the duration of his sentence which is less
than a full year.
One district judge has explained the dispute as follows:
[T]he pivotal clause in § 3624(b) is the one
stating than an inmate may earn up to 54 days of
good conduct time "at the end of each year of the
prisoner's term of imprisonment." That clause
raised the question whether the phrase "term of
imprisonment" means "sentenced [sic] imposed" or
"time served." If "term of imprisonment" refers to
the sentence, an inmate's maximum potential good
conduct time could be calculated by multiplying 54
days by the number of years in the sentence. . . .
However, if a term of imprisonment is defined by
the inmate's actual time served, the number of
good time credits that could be earned would be
reduced and a more complicated calculation would
be required because an inmate that earns good time
will not actually serve his full sentence.
White v. Scibana. 2004 U.S. Dist. LEXIS
7257, * 6-7 (W.D.Wis. April 23, 2004).
Petitioner contends that allotting him 54 days for each year
served, as opposed to each year of his imprisonment to which
he was sentenced, has resulted in GCT of only 47 days per year,
in violation of § 3624(b).*fn4
Pasciuti asks this Court to hold that
BOP's decision, that he be granted only 47 days of GCT, violated the Administrative Procedure Act ("APA"),
5 U.S.C. § 551-559, because BOP did not merely interpret the statute,
but rather made a unilateral "legislative" decision, which it cannot do.
Petitioner also contends that, even if BOP's determination did not
violate the APA, the calculation method, published as BOP's Sentence
Computation Manual and as BOP Program Statement 5880.28, is contrary to
the clear and unambiguous intent of Congress expressed in § 3624(b),
which measures GCT against the "term of imprisonment" and not the "time
(b) Administrative Procedure Act
Petitioner first alleges that the decision to award only 47 days GCT
amounted to a legislative determination, rather than merely an
interpretative one, and that as such, it must be subjected to the APA's
notice and comment procedure. Because the BOP calculation formula did not
pass through this procedure, Petitioner asks this Court to set it aside.
(1) Legislative and Interpretive Rules
A rule or decision which amounts to a legislative determination must be
submitted to the APA's notice and comment procedural requirements.
5 U.S.C. § 553. However, an agency's interpretive decision is exempt
from these procedures. 5 U.S.C. § 553(b)(A). Courts have had to
delineate between "interpretive" and "legislative" rules, because the APA
does not. See, e.g., Sweet v. Sheahan,
235 F.3d 80, 90 (2d Cir. 2000). The Second Circuit has stated "that
legislative rules are those that create new law, right, or duties, in
what amounts to a legislative act." N.Y. State Elec. & Gas.
Corp. v. Saranac Power Partners L.P., 267 F.3d 128, 131 (2d Cir.
2000) (internal ...